Gov. Jerry Brown has signed into law California’s tax on Internet sales through affiliate advertising which will immediately cut small-business website revenue 20% to 30%, experts say.

The bill, AB 28X, takes effect immediately. The state Board of Equalization says the tax will raise $200 million a year, but critics claim it will raise nothing because online retailers will end their affiliate programs rather than collect the tax.

Amazon has already emailed its termination of its affiliate advertising program with 25,000 websites. The letter says, in part:

(The bill) specifically imposes the collection of taxes from consumers on sales by online retailers – including but not limited to those referred by California-based marketing affiliates like you – even if those retailers have no physical presence in the state.

We oppose this bill because it is unconstitutional and counterproductive. It is supported by big-box retailers, most of which are based outside California, that seek to harm the affiliate advertising programs of their competitors. Similar legislation in other states has led to job and income losses, and little, if any, new tax revenue. We deeply regret that we must take this action.

The new law won’t affect customers, Amazon said, but added that the immediate termination of the affiliate program also applies to endless.com, myhabit.com and smallparts.com.

(Full disclosure: I have a personal website that has been an Amazon affiliate. It made $2 last quarter. That is not 30% of my income.) [More…]

Almost all the California Amazon affiliates have fewer than 75 employees and a large percentage have no employees, according to Rebecca Madigan, executive director of the Performance Marketing Association, a Camarillo-based nationwide trade association.
“This law won’t impact Amazon that much but it is a crisis for website owners who make revenue by placing ads on their websites for thousands of online retailers,” Madigan said. “Most of them don’t have a physical presence in California.”

California Retailers Association stated: “We thank Governor Jerry Brown and the leaders in the California State Legislature who have demonstrated their leadership and commitment to California businesses by passing and signing e-fairness into law. Small and large businesses across the state have been held at a major disadvantage by the current law that out-of-state online companies like Amazon.com and Overstock.com have exploited for years. This has cost us jobs and revenues.”

The U.S. Supreme Court in 1992 ruled that states cannot tax businesses that aren’t physically within their boundaries. Such taxes would regulate interstate commerce, which is a federal government prerogative.

However, New York in 2008 passed a law to require companies with online affiliate advertising programs to collect sales tax for sales through those affiliates based in New York. Since then Rhode Island, North Carolina, Illinois, Arkansas and Connecticut passed similar laws.

Amazon is suing New York over the law, and the Performance Marketing Association is suing Illinois.

Amazon affiliate Keith Posehn, owner of zorz.com in San Diego, said he had affiliate advertising agreements with more than 70 companies and these programs were 35% of his company revenue before the California legislature passed a similar bill last year. Then-Governor Schwarzenegger vetoed that bill.
“We got 70 termination letters in one night before he vetoed it,” Posehn said. After that, he started changing his business away from affiliate advertising and has started a new mobile application company.

“I have pitched investors and several question the wisdom of staying in California,” Posehn said. “Some venture capitalists are very keen on placing startups outside California because start-up costs are less.”

However, another Amazon affiliate, Glenn Richards, an independent recording artist in Orange County (MightyFleissRadio.com), is angry with Amazon and its head Jeff Bezos.

“I think that Amazon.com’s decision to throw their affiliates, (including myself) under the bus is a national disgrace,” Richards said. “Jeff Bezos should be ashamed of his conduct. His bully boy practice and tactics of extinguishing small business in California should be (condemned). Small business has no power…and no hope to confront Internet giants like Amazon.com.”

Board of Equalization Member George Runner blasted Brown for signing the law. “Even as Governor Jerry Brown lifted his pen to sign this legislation, thousands of affiliates across California were losing their jobs. The so-called ‘Amazon tax’ is truly a lose-lose proposition for California. Not only won’t we see the promised revenues, we’ll actually lose income tax revenue as affiliates move to other states.”

After two-months of fence-sitting, Illinois Governor Pat Quinn today signed controversial legislation requiring Internet retailers like Amazon.com and Overstock.com to collect Illinois’ 6.25% sales tax if they have affiliate sellers in the state. House Bill 3659, the Mainstreet Fairness Bill, was passed by the state’s lame duck legislature in early January. Since then, the bill has been the subject of fierce lobbying by traditional bricks and mortar retailers, who supported it, and Illinois-based Internet-only businesses, who warned that if Quinn didn’t veto it some of them would flee the state. Had Quinn done nothing, the bill would have become law tomorrow without his signature.

Amazon has already said it will terminate its Illinois affiliates, just as it has said it will drop 10,000 California based “associates” if similar legislation pending in that state becomes law. Affiliates are paid a fee by Amazon and other retailers for sales brought in through advertisements and links on the affiliates’ web sites. In an escalating PR war, Wal-Mart, Sears, Best Buy and Barnes & Noble have all issued public invitations to Amazon’s spurned associates to join their affiliate marketing programs instead. Yesterday, the Alliance for Main Street Fairness, a bricks and mortar retailers organization, even announced a new web site to connect affiliates “about to get thrown under the bus” by online-only sellers with retailers who already collect sales taxes on line. Quinn’s office said today that the affiliate matchmaking service had been launched at his request.

In a statement, Scott Kluth, founder and CEO of Chicago-based CouponCabin.com called the Governor’s approval of the bill “deeply disappointing” and said he is “actively exploring” moving his seven year-old business to Indiana. Kluth, a long time resident of Chicago, had previously threatened such a move, telling Forbes, “I can see Indiana form the roof of our business.”

But Quinn, a Democrat, described the law as necessary to put the state’s “main street businesses” on “a level playing field” with online retailers and to protect main street jobs. In a statement issued by Quinn’s office, David Vite, president of the Illinois Retail Merchants Association praised the law as a matter of “fairness for retailers, fairness for the economy but most importantly, fairness for taxpayers.”

Under a 1992 U.S. Supreme Court ruling, only sellers with a physical presence (“nexus” in taxspeak) in a state are required to collect that state’s sales taxes. Just shipping into a state by say, FedEx or UPS, isn’t enough to establish nexus. Consumers buying online still owe “use” (meaning sales) tax to their states, but few bother to pay. The Illinois Department of Revenue figures it loses between $153 million and $170 million in revenue a year from Internet sales on which taxes are due, but not collected

The new Illinois law is modeled on one adopted by New York in 2008. While Amazon has been challenging (so far unsuccessfully) the constitutionality of that law in court, it has kept its New York affiliates and now collects New York sales tax on purchases shipped to the Empire State. (It also collects for shipments to its home state of Washington, as well as North Dakota, Kansas, and Kentucky.) After Rhode Island and North Carolina adopted copycat “Amazon” laws in 2009, Amazon ended its marketing deals with sites based in those states. It also jettisoned affiliates based in Colorado, which adopted a law requiring Internet sellers who don’t collect sales tax to report sales to the state. (A federal judge has issued a preliminary injunction blocking the Colorado law.) In addition to California, the states of Arizona, Connecticut, Hawaii, Minnesota, Mississippi, and Vermont are all now considering Amazon laws.

As Forbes suggested here, Amazon’s days of sales tax collection free selling may be numbered for another reason: Amazon’s growing network of warehouse and fulfillment centers. Last year, the Texas Comptroller sent Amazon a bill for $269 million for four years of back sales taxes, based on an Amazon warehouse there. Amazon insists the warehouse doesn’t give it nexus. But last Month, it told its Texas employees that it would close the warehouse, throwing 110 of them out of work.

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